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ELCDismissedHCCC No. 114 of 2007· [2017] KEELC 2263 (KLR)

Johnson Home Gichuhi & another v Isaac Gathungu Wanjohi & 5 others [2017] KEELC 2263 (KLR)

High Court of Kenya
14 July 2017
KBK. BOR
921 words in judgment
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The bottom line

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A Kenyan court refused to revive a land dispute that died when the plaintiff did, because the family waited over seven years without a good explanation.

What this practically means

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Executive summary

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This is a ruling on the Plaintiffs' application dated 3rd April 2017 seeking to revive HCCC No. 114 of 2007, filed in February 2007 by managers of the estate of Margaret Wanjiru Gichuhi seeking cancellation or revocation of the conveyance of L.R. No. 209/1461 to the 1st to 3rd Defendants on grounds of fraud or mistake. The Plaintiff died on 12th January 2009 and the suit abated one year later, as no substitution application was made. Limited grants of letters of administration issued to Johnson Home Gichuhi on 19th August 2013; an application for reconstruction was filed on 28th June 2016 and allowed by the Deputy Registrar on 4th July 2016; the revival application was filed on 4th April 2017. The Applicants attributed the delay to loss of the court file and change of advocates. The Defendants opposed, asserting they purchased the property for value in 2002 and would be prejudiced, alleging the Gichuhis had built rental premises on it. The court, applying Order 24 of the Civil Procedure Rules and the principles in Leo Sila Mutiso as restated in the authorities cited, held that the delay of over seven years from death and almost four years from the limited grant was inadequately explained, the reasons lacking plausibility and containing unexplained gaps, and that the applicant had not sought extension of time for substitution. The application for revival and substitution was dismissed with costs to the 1st to 3rd Defendants.

Key legal issues

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01

Whether sufficient cause was shown to revive the abated suit

Holding

No; the suit abated one year after the Plaintiff's death and the applicant neither sought extension of time nor explained the delay adequately

Reasoning

The suit abated by operation of law one year after Margaret Wanjiru Gichuhi died on 12/1/2009. The application for substitution was made on 4/4/2017, a delay of over seven years. The applicant did not seek to enlarge time. The explanation of a lost court file and change of advocates did not meet the threshold of sufficient cause and contained unexplained gaps.

p. 2
02

Applicable principles for revival of an abated suit and extension of time

Holding

The court applied the principles from Leo Sila Mutiso v Rose: length of delay, reason for delay, chances of the suit succeeding, and degree of prejudice to the respondent

Reasoning

Relying on Said Sweilem Gheithan Saanum on the three stages under Order 24, and on Issa Masudi Mwabumba quoting Leo Sila Mutiso on extension of time, the court weighed the delay, the inadequacy of the reasons, and the prejudice to the Defendants who had purchased the property for value in 2002 and would suffer if revival were allowed.

p. 2

Legal principles established

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  • As a general rule the death of a Plaintiff does not cause a suit to abate if the cause of action survives the death; but where no substitution application is made within one year or extended time, the suit abates as of force
  • An applicant seeking revival of an abated suit outside one year must demonstrate good reason for the court to extend time for substitution
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps

Court orders

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  1. 1.The application dated 3rd April 2017 to revive the suit and substitute the deceased Plaintiff is dismissed
  2. 2.Costs of the application awarded to the 1st to 3rd Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 24

Cases cited (4)

  • Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) and 5 Others
    [2015] eKLR
  • Attorney General v Law Society of Kenya & Another
    [2013] eKLR
  • Issa Masudi Mwabumba v Alice Kavenya Mutunga & 4 Others
    [2012] eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    CA Nai 255 of 1997 (unreported)
Jurisdiction invoked
Order 24 of the Civil Procedure Rules (revival of abated suit and substitution of deceased Plaintiff)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Johnson Home Gichuhi & another v Isaac Gathungu Wanjohi & 5 others [2017] KEELC 2263 (KLR)", Case Analysis (2017). HCCC No. 114 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2263/eng@2017-07-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.